Jack Daniels vs. a Sense of Humor
There is much to celebrate in the legal world. That is: our ability to maintain a sense of humor has been preserved by the United States Court of Appeals for the Ninth Circuit.
You probably haven’t been following it, as you, I assume, are a normal human and are neither a legal nerd nor a humor writing nerd, and I am both, but VIP Products, LLC vs. Jack Daniel’s Properties, Inc. in all its iterations has been going on for about ten years now, and it has finally come to an end.
Let me explain.
Close your eyes, and picture a bottle of Jack Daniel’s Whiskey. You can probably do it, even if you don’t drink. You might not be able to come up with the details, but you can probably come up with the fact that it’s a square-ish bottle, black and white, with old-fashioned script on it and brown liquor in it. Just about everyone could pick it out of a lineup.
Which is sort of the point of the case.
The marketing people at Jack Daniel’s have worked very hard to make their product instantly recognizable, just like McDonald’s wants the golden arches recognizable, and you’d recognize a can of Coca-Cola no matter what language Coca-Cola was written in.
VIP Products makes, among other things, I assume, dog toys that are parodies of other things. The relevant dog toy to this case is a dog toy shaped like a Jack Daniel’s bottle. Instead of calling it Jack Daniel’s, however, they called it “Bad Spaniels.” The Jack Daniel’s bottle says “Old No. 7 Brand Tennessee Sour Mash Whiskey.”[1] The dog toy says “Old No. 2 On Your Tennessee Carpet.” Jack Daniel’s also gives you the alcohol percentage, whereas the dog toy says “43% poo by volume” and “100% smelly.”[2]
Whether or not you yourself drink, you’ve likely encountered drunk people before. In my experience, there are five different kinds of drunks:
- The “I love you, man” drunk
- The drunk who laughs at everything
- The drunk who falls asleep[3]
- The drunk who can’t quit partying, even when partying becomes annoying and/or dangerous
- The belligerent drunk
Some people cycle through these stages depending on how many drinks they’ve had, the type of drink, the company they keep, or the weather, I don’t know. In any event, the Jack Daniel’s corporation seems to be a belligerent drunk and never cycles through the ‘laughs at everything’ stage, because they did not find any humor in this dog toy and promptly sued.
And they didn’t just sue. This went through every stage of litigation possible, up and down, through appeals and remanding (which is a legal term for a higher court saying, basically, “listen, lower court, here’s the law, we’re going to send the case back to you, and this time do your job properly and apply the law we told you when you give an answer”), even making a pitstop at the United States Supreme Court.
Yes, Virginia. This means that the United States Supreme Court was forced to use the word “poo” multiple times in a decision.[4]
Anyway, I won’t get into the legal analysis here, because that would probably make your eyeballs dry up and drop out with boredom, but the bottom line is that the Ninth Circuit Court of Appeals came to the conclusion that there was no evidence that the dog toy would make people think there was actual poop in Jack Daniels, nor would it make people necessarily associate Jack Daniels with poop, and it would not ‘dilute’ the Jack Daniels brand.
Frankly, personally, I think this lawsuit itself diluted the brand. I am much more likely to skip buying Jack Daniels because of their lack of a sense of humor rather than anything else. It’s ice that dilutes alcohol, not silly dog toys.
[1] Boozy trivia—I would have called Jack Daniel’s a type of bourbon since my palate is not sophisticated enough to distinguish it from Jim Beam, which is a bourbon. I have learned, as a result of following this case for a decade, that bourbon can only be called bourbon if it is made in Kentucky just like champagne is only champagne if it is made in the champagne region of France even if it is otherwise the same dang thing.
[2] I have a dog, and while he is perfect in every way, I can tell you that these numbers are probably accurate—he seems to be 43% poo by volume and he is, in fact, 100% smelly.
[3] This is me.
[4] It’s always funny to me how courts are required to describe decidedly unprofessional things in professional ways. For example, the Jack Daniel’s case cites to the case wherein the Dallas Cowboys Cheerleaders sued the people who made Debbie Does Dallas, and the federal court was forced to describe the ‘plot’ of Debbie Does Dallas in a way that would be appropriate for a federal court decision. I think the linguistic gymnastics is hilarious. You can find it here: Dallas Cowboys Cheerleaders v. Pussycat Cinema, 467 F. Supp. 366 (S.D.N.Y. 1979) :: Justia
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